Asset Forfeiture

Will a Trump Administration's Support for Police Taking Citizens' Property Trigger Needed Reforms?

Sen. Sessions' endorsement of civil forfeiture gets public criticism.

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Jeff Sessions
Michael Reynolds/EPA/Newscom

Over the holiday weekend, conservative pundit George Will (who abandoned the Republican Party over the summer due to Donald Trump's ascension) took aim at Trump's attorney general nominee, Sen. Jeff Sessions (R-Ala.).

The actual targets of Will's concern are federal civil asset forfeiture programs, the systems by which law enforcement agencies are able to seize and keep citizens' property, often without having to prove they've committed a crime. Will is no newcomer in critiquing the awfulness of civil forfeiture. He's familiar with the attorneys of the Institute of Justice, who have been fighting this abuse for years, and wrote about the constitutional violations of civil seizure back in 2012.

Will targeted Sessions over the senator's open support for asset forfeiture and willingness to magically transform suspicion into guilt in order to keep the revenue rolling into the pockets of law enforcement agencies:

At a 2015 Senate Judiciary Committee hearing on forfeiture abuses, one senator said "taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong," and neither is law enforcement enriching itself from this. In the manner of the man for whom he soon will work, this senator asserted an unverifiable number: "95 percent" of forfeitures involve people who have "done nothing in their lives but sell dope." This senator said it should not be more difficult for "government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit." In seizing property suspected of involvement in a crime, government "should not have a burden of proof higher than in a normal civil case."

Sessions' contentions that these people affected are all drug dealers and that forfeitures are handled as a "normal civil case" are both wildly off, as Will explains. Governments deliberately make the process of fighting forfeiture as convoluted, bureaucratic, and difficult as possible to make it harder for citizens to get their stuff back, even if they're innocent. And because it's a civil process, citizens don't have a guaranteed right to an attorney, which means they often have to pay lawyers just for the chance to get their property back.

That hearing from last year was connected to an effort by several senators (including Sen. Rand Paul) to push forward a bill to stop the federal misuse of civil forfeiture. A Sessions nomination suggests an administration not necessarily open to reform. The Wall Street Journal today in an op-ed also worries about Sessions' positions on forfeiture (while defending everything else Sessions believes):

The all-too-common practice allows law enforcement to take private property without due process and has become a cash cow for state and local police and prosecutors. Under a federal program called "equitable sharing," local law enforcement can team up with federal authorities to seize property in exchange for 80% of the proceeds.

Assets are often seized—and never returned—without any judicial process or court supervision. Unlike criminal forfeiture, civil forfeiture doesn't require a criminal conviction or even charges. According to the Virginia-based Institute for Justice, which tracks forfeitures, 13% of all forfeitures done by the Justice Department between 1997 and 2013 were in criminal cases while 87% were civil forfeitures. And 88% of those forfeitures were done by an administrative agency, not a court.

It would be interesting if the concerns about Trump's various cabinet and leadership nominees focused on these kind of abuses, but let's not hold our breath here. The reality is that civil asset forfeiture abuses are a non-partisan consequence of expanding law enforcement power. Law enforcement and government agencies love forfeiture and it has everything to do with getting that money and nothing to do with which party is in power. There's been plenty of asset forfeiture abuse in the Obama administration, even with some very, very modest reforms by former Attorney General Eric Holder. Current Attorney General Loretta Lynch loves it, and it wasn't a pack of rightwing conservatives who oversaw the federal raiding of Rentboy.com, a site for male escorts, obviously for the purpose of seizing all its assets.

As much as authorities may love civil forfeiture, we know from polls that citizens are massively opposed, but only when they understand what it is and that it happens. In that sense, Trump's unpopularity despite his victory could perhaps give more public attention to this abuse of government power. It's a shame that after all this time it might be what it takes.

More Reason on asset forfeiture here.

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  1. And this right after the article on the birthday of the bill of rights. Sounds like more of a Viking funeral.

  2. Nobody has sold the case for civil asset forfeiture well yet they all insist it’s absolutely necessary even though criminal asset forfeiture exists. Never mind explaining why the government should reap the proceeds of illegal activity in any case.

  3. The government learned everything it knows from the Mafia.

    1. It needs a good old fashioned Mafia War.

  4. The knee-jerk antagonism to anything Trump may have a silver lining.

    1. Maybe, but it’s doubtful. Besides “the boy who cried wolf” problem, they’ll dedicate their screeching to the same poorly chosen issues and examples they’ve always had.

    2. I highly doubt it will. I’ve tried raising this issue with some liberal friends. They’re much more interested in calling him a racist (despite the fact that the accusation has precious little factual support).

    1. When you said “sad” I thought he’d died. But he’s retired.

      Sad for us, not for him. God bless you, Professor.

    2. Dude, it’s 2016, don’t phrase it that vaguely.

      Sowell is retiring, but still kicking.

    3. Years of lying Presidents ? Democrat Lyndon Johnson and Republican Richard Nixon, especially ? destroyed not only their own credibility, but the credibility which the office itself once conferred.

      He’s got that dead wrong. Presidents and politicians have lied as a general principle since evolution created camouflage.

      What changed was the Vietnam War coinciding with expanded TV coverage. Then throw in cable TV, UHF, and finally the internet, and blind faith in politicians is toast. (Lot of people still have their tribal choices, but they don’t trust who they vote for. Different difference.)

  5. O.T. Road to Serfdom.
    Ok, I’ve gotten to chapter 5 of Road to Serfdom, I can’t believe the # of buzzwords(ie.. central planning, roadz) that this book has that I see a lot of you throwing out. Thanks again to whoever suggested it(it’s been a while, sorry)! I like it and it’s a pretty easy read so far. I think this is a book that I’ll have to reread again and again to truly appreciate it.

    1. Yeah, that’s a good one. I need to re-read it. It’s been a long time.

      1. I have not, but will. Thanks!

        1. Have you yet discovered Mises, or Rothbard? If no then you have a great treat awaiting you once you do. Hayek was a student of Mises, and Rothbard carries Mises’ ideas to their logical end.

  6. Sessions looks like a fucking yard gnome. Can’t wait for him to go all reefer madness.

  7. The right loves mindless law and order resumes, and the left loves the control overpolicing gives them over the populace. Anything Trump does that isn’t superficially bad or rhetorically stupid will get zero play in reporting. If you could tie asset forfeiture to identity politics, you might get the left to look at it. If you were to show property seizures as another symptom of out-of-control government, you may entice the right to think more about it. But, Trump or no Trump, it’s unlikely this gets noticed.

  8. So we can expect questions on asset forfeiture at all judicial confirmations?
    Back in a minute – there are pigs flying outside my window! Beautiful!

  9. Mine

    Mine

    Mine

    Mine

  10. Three Points:

    1) Session will be the Attorney General because he was the only powerful Republican who was supportive of and loyal to Trump during his campaign. All the other Republicans who were willing to bet their political futures on Trump, e.g., Palin, Giuliani, Gingrich, Bolton, et. al., were people who had no political future.

    Because the difference between snuffing a scandal out and staying in office can depend on the loyalty of the AG to the President (see Comey working as Lynch’s mouthpiece), the single most important qualification for being AG is loyalty.

    I.e., I wouldn’t say Sessions’ appointment to be Attorney General says anything about Trump’s position on forfeiture.

    2) Sessions position is all about his hatred of drugs. He’s an honest to God drug war warrior. The excuses he’s making for forfeiture are about defending the war on drugs–it’s not really about asset forfeiture itself. Argue against the drug war, and the forfeiture problem goes away. We used to think recreational marijuana was impossible, so we’d work on peripheral issues. The problem is the drug war.

    1. “I wouldn’t say Sessions’ appointment to be Attorney General says anything about Trump’s position on forfeiture.”

      Will that matter though?

      1. Trump may not care much about that issue either way. He may defer to his Attorney General.

        If he cares, it will matter.

        When I first heard the rumors that Sessions would be AG, I thought that might be the end of legal, recreational or medical marijuana. My understanding is that Obama’s decision not to stop raiding medical marijuana dispensaries so long as they were being compliant with local laws was basically an executive order level decision. And if Trump wants to change that, then the Supreme Court says he can.

        https://en.wikipedia.org/wiki/Gonzales_v._Raich

        Obama raided legal medical marijuana dispensaries hundreds of times before he changed his mind.

        It’s all at the President’s pleasure. That sucks, but just because we don’t like it doesn’t mean that isn’t the way it is. It was relief when Trump said, “In terms of marijuana and legalization, I think that should be a state issue, state-by-state”.

        http://tinyurl.com/zfa5yqs

        In California, civil forfeiture requires a criminal conviction, but now that possession is legal, that’s basically a moot point for most people in California now. The solution is legalization.

  11. 3) One of the problems with civil asset forfeiture is that it seems to have a burden of proof lower than a normal civil case. “Because the plaintiffs say so” is not the standard of proof in a normal civil case. The standard in a normal civil case is a beyond a preponderance of the evidence as determined by a jury of your peers.

    Once that’s cleared up, then we can talk about how the government confiscating people’s property without due process of law isn’t like and should be like a civil case with a preponderance of the evidence as the standard. The correct standard for the government taking property as the result of a crime is beyond a reasonable doubt.

    1. The primary problem with civil asset forfeiture is that it doesn’t require ANY burden of proof. The cops, prosecutors, and other government thieves merely say so, and it’s theirs. You want it back? Spend money and *prove* it wasn’t from illegal activity, and maybe you wil lget some of it back, some day, in worse condition than when it was stolen.

      The founding fathers would be aghast at the idea that the government can steal property and citizens have to hire lawyers and prove they didn’t do anything illegal — guilty until proven innocent.

      I sometimes think there should be a graduation exam at end of each Congress Critter’s term. Check everything they voted for against the list of crimes in the Declaration of Independence — if anything meets those criteria, they go to jail for as long as their term was, and all their assets are seized.

      1. Expanding on this graduation exam, it could be by a jury of random voters from their district, or maybe it would be an election question — “Did the incumbent violate the Declaration of Independence in any way?” But a ballot question would be like so many other ways of holding politicians accountable, like impeachment — so drastic that it would never happen. I’d much rather have a real trial with random juries, going over every single vote in the just-ended term, comparing each vote to every one of the indictment clauses, voting on whether the vote violated them. Document each one — yea or nay, and why.

        Not just for the chance that once in a while a politician would go to jail and lose everything. Primarily for the continued exposure to what the Declaration really was — an indictment of overbearing irresponsible unaccountable government.

      2. I dropped off a word in my comment:

        “Once that’s cleared up, then we can talk about how the government confiscating people’s property without due process of law isn’t like and should [not] be like a civil case with a preponderance of the evidence as the standard.”

        Of course, you’re right. The standard of proof should never be below what it is in a civil case. Right now, the standard of proof appears to be somewhere between reasonable suspicion and probable cause.

        It’s certainly below the standard for a normal civil case.

        1. It should require a criminal conviction. The government is alleging criminal activity as the source of the money. They should have to prove it.

          The current standard is negative, in that the government says guilty and the victims have to prove their innocence. No level of proof is acceptable in such a backwards perversion of justice.

          1. I agree.

            The government should not deprive anyone of their property without due process of law.

            Due process requires that someone be convicted beyond a reasonable doubt.

            Meanwhile, owning money, cars, etc. isn’t a crime.

  12. Trump’s unpopularity despite his victory could perhaps give more public attention to this abuse of government power.

    I wish you were right. But, I doubt it. Really, interest in civil asset forfeiture reform has mostly been from a few hardline conservatives. With a copartisan in the AG role, I think interest might wane, if anything.

    1. I’m not sure Trump’s unfavorable ratings will hold.

      If he doesn’t grab anybody’s pussy for the first 100 days in office, his ratings will probably go up.

      If his favorable percentages were up in the 60s, I’d expect them to come down, too.

      Civil forfeiture isn’t really a campaign issue. It’s more of a special interest thing. You vote for somebody you think cares about the Constitution, and you push for the end of the drug war. Most of the civil rights abuses (like forfeiture) are predicated on the drug war. Forfeiture becomes moot when the drug war is over.

  13. “tie asset forfeiture to identity politics”

    Yeah, and if we could tie asset forfeiture to feeling superior to college kids getting indoctrinated by their college professors we could possibly get Reason commenters interested in the issue. A coalition between Leftists who hate nanny state big government conservatism and libertarians who hate big government conservatism probably isn’t possible because liberals like grabbing guns. Just look at the Obama administration’s record on the issue.

    1. Hey, you switched back!

    2. Asset forfeiture is fine when done on behalf of the proletariat, right, comrade?

      1. Do not feed.

        1. DON’T TELL ME WHAT TO DO

    3. we could possibly get Reason commenters interested in the issue

      What world do you live in where Reason commenters don’t care about this issue?

  14. Robby Soave ?@robbysoave 2h2 hours ago

    Academics (at private *and* public colleges) should have enjoy more free speech than just about anybody else

    What a cuck!

    1. I’m not sure what he even means.

    2. He means that members of the nomenklatura should enjoy more privileges than the proletariat.

      How anyone (with an open mind) who was exposed to libertarianism could say that one group should have more free speech than another group just boggles. One can only assume that Robby has no interest in even learning about libertarianism.

  15. “95 percent” of forfeitures involve people who have “done nothing in their lives but sell dope.”

    So… innocent of any wrong-doing?

    1. Look, it is well established that the market for drugs is entirely supply driven. Selling dope is the greatest crime one can commit, short of a 17-year-old boy sexting a 16-year-old girl.

  16. I wouldn’t give an inflated dime for George Will. What I think is interesting, however, is that a fine man like Sessions supports forfeiture. My explanation for it is that he has been in government too long, and the government under which we live today is an unconstitutional federal tyranny. It hardly matters which political party is in power, either. Both are tyrannical in different ways.Nothing is going to change—such as a return to government by the U.S. Constitution—until both parties change or are dissolved.

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  18. Trump probably isn’t that much worse than the previous Presidents on this issue. Except that he’s more open about it, and lacks the social / political skills to know how to avoid pushback. So maybe that’s the silver-lining of him getting elected.

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  21. Sessions position on Civil Asset Forfeiture makes him unfit as AG. If a ‘loophole’ (in due process) exists its use will grow in time, period. As more and more local governments approach insolvency they will increasingly be tempted to seize and KEEP assets. Seizing and keeping assets is part of a Banana Republic’s way of life. A great advancement in America’s evolution and revolution of 1776 was protection AGAINST government. A major way politicians get elected and re:elected is ensuring a very high level of government employees votes for them One way is pay and retirement benefits. And who pays? All tax payers. Who can afford it? Many local governments can’t. Civil asset forfeiture helps in a minor way, fund re:election.

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